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UNVEILING OF THE STATUE 



CHIEF JUSTICE MARSHALL, 



WASHINGTON, MAY ioth, 1884. 



ORATION 



WILLIAM HENRY RAWLE, LL. D. 



UNVEILING OV THE STATUE 



CHIEF JUSTICE MARSHALL, 



WASHINGTON, MAY ioth, 1884. 



ORATION 



WILLIAM HENRY RAWLE, LL. D. 




PHILADELPHIA: 

ALLEN, LANE & SCOTT'S PRINTING HOUSE, 

229-231 South Fifth Street. 

18S4. 






John Marshall, Chief Justice of the United States, 
has been dead for nearly half a century, and if it be asked 
why at this late day we have come together to do tardy 
justice to his memory and unveil this statue in his honour, 
the answer may be given in a few words. The history 
dates from his death. He had held his last Court, and 
had come Northward to seek medical aid in the city of 
Philadelphia, and there, on the 6th of July, 1835, ^^^ "^i^*^^- 
While tributes of respect for the man and of grief for the 
national loss were paid throughout the country, it was felt by 
the Bar of the city where he died that a lasting monument 
should be erected to his memory in the capital of the nation. 
To this end subscriptions, limited in amount, were asked. 
About half came from the Bar of Philadelphia, and of the rest, 
the largest contribution was from the city of Richmond, but 
all told, the sum was utterly insufficient. What money there 
was, was invested by trustees as " The Marshall Memorial 
Fund," and then the matter seemed to pass out of men's 
minds. Nearly fifty years went on. Another generation and 
still another came into the world, till lately, on the death 
of the survivor of the trustees, himself an old man, the 
late Peter McCall, the almost-forgotten fund was found to 
have been increased, by honest stewardship, seven fold. 
Of the original subscribers but six were known to be 
alive, and upon their application trustees were appointed 
to apply the fund to its original purpose. It happened 
that at this time the Forty-seventh Congress appropriated 



of the people's money a sum about equal in amount for the 
erection of a statue to the memory of Chief Justice Marshall, 
to be "placed in a suitable public reservation in the city of 
Washington." To serve their common purpose, the Con- 
gressional committee and the trustees agreed to unite in the 
erection of a statue and pedestal ; and after much thought 
and care the commission was intrusted to William W. Story, 
an artist who brought to the task not only his acknowledged 
genius, but a keen desire to perpetuate through the work 
of his hands the face and form of one who had been not 
only his father's professional brother but the object of his 
chiefest respect and admiration. That work now stands 
before you. Its pedestal bears the simple inscription : — 

JOHN MARSHALL 

CHIEF JUSTICE OF THE UNITED STATES 

ERECTED BY 

THE BAR AND THE CONGRESS 

OF THE UNITED STATES 

A. D. MDCCCLXXXIV. 

No more " suitable public reservation" could be found 
than the ground on which we stand, almost within the 
shadow of the capitol in which for more than thirty years 
he held the highest judicial position in the country. 

It may well be that the even tenour of his judicial life 
has driven from some minds the story of his brilliant and 
eventful youth. The same simplicity, the same modesty 
which marked the child distinguished the great Chief Justice, 
but, as a Judge, his life was necessarily one of thought and 
study, of enforced retirement from much of the busy world. 



dealing- more with results than processes ; and the surges of 
faction and of passion, the heat of ambition, the thirst of 
power reached him not in his high judicial station. Yet he 
had himself been a busy actor on the scenes of life, and if his 
later days seemed colourless, the story of his earlier years is 
full of charm. 

The eldest, of a large family, reared in Fauquier 
county, in Virginia, he was one of the tenderest, the 
most lovable of children ; he had never, said his father, 
seriously displeased him in his life. To his mother, to 
his sisters especially, did he bear that chivalrous devotion 
which to the last hour of his life he showed to women. 
Such education as came to him was little eot from 
schools, for the thinly-settled country and his father's 
limited means forbade this. A year's Latin at fourteen at a 
school a hundred miles from his home and another year's 
Latin at home with the rector of the parish was the sum of 
his classical teaching. What else of it he learned was with 
the unsympathetic aid of grammar and dictionary. But his 
father — who Marshall was wont to say was a far abler man 
than any of his sons, and who in early life was Washington's 
companion as a land-surveyor, and, later, fought gallantly 
under him — his father was well read in English literature, 
and loved to open its treasures to the quick, receptive mind 
of his eldest child, who in it all especially in history and 
still more in poetry, found an enduring delight. Much of 
his time was passed in the open air, among the hills and 
valleys of that beautiful country, and thus it was that in 
active exercise, in day dreams of heroism and poetry, in 
rapid and eager mastery of such learning as came with- 



in his reach, and surrounded by the tender love, the 
idolatry of a happy family, his earlier days were passed. 

The first note of war that rane throuoh the land called 
him to arms, and from 1775, when was his first battle on the 
soil of his own State, until the end of 1 779, he was in the army. 
Through the battles of Iron Hill, of Brandywine, of Ger- 
mantown and of Monmouth, he bore himself bravely, and 
through the dreary privations, the hunger and the naked- 
ness of that ghastly winter at Valley Forge, his patient 
endurance and his cheeriness bespoke the very sweetest 
temper that ever man was blessed with. So long as any 
lived to speak, men would tell how he was loved by the 
soldiers and by his brother officers ; how he was the arbiter 
of their differences and the composer of their disputes, and 
when called to act, as he often was, as judge advocate, he 
exercised that peculiar and delicate judgment required of 
him who is not only the prosecutor but the protector of 
the accused. It was in the duties of this office that he first 
met and came to know well the two men whom of all others 
on earth he most admired and loved and whose impress he 
bore through his life, Washington and Hamilton. 

While of Marshall's life, war was but the brief opening 
episode, yet before we leave these days, one part of them 
has a peculiar charm. There were more officers than were 
needed, and he had come back to his home. His let- 
ters from camp had been read with delight by his sisters 
and his sisters' friends. His reputation as a soldier had 
preceded him, and the daughters of Virginia, then, as ever, 
ready to welcome those who do service to the State, greeted 
him with their sweetest smiles. One of these was a shy, dif- 



fident girl of fourteen; and to the amazement of all, and 
perhaps to her own, from that time his devotion to her knew 
no variableness neither shadow of turnine. She afterwards 
became his wife, and for fifty years, in sickness and in health, 
he loved and cherished her till, as he himself said, " her 
sainted spirit fled from the sufferings of life." When her 
release came at last, he mourned her as he had loved her, 
and the years were few before he followed her to the 
grave. 

But from this happy home he tore himself away, and at 
the college of William and Mary attended a course of law 
lectures and in due time was admitted to practice. But 
practice there was none, for Arnold had then invaded 
Virginia and it was literally true that ititer ar?Ha silent leges. 
To resist the invasion, Marshall returned to the army, and 
at Its end, there being still a redundance of officers in the 
Virginia line, he resigned his commission and again took 
up his studies. With the return of peace the courts were 
opened and his career at the bar began. Tradition tells 
how even at that early day his characteristic traits began to 
show themselves — his simple, quiet bearing, his frankness 
and candour, his marvellous grasp of principle, his power of 
clear statement and his logical reasoning. It is pleasant to 
know that his rapid rise excited no envy among his asso- 
ciates, for his other high qualities were exceeded by his 
modesty. In after life, this modesty was wont to attribute his 
success to the " too partial regard of his former companlons- 
In-arms, who, at the end of the war had returned to their 
families and were scattered over the States." But the cause 
was in himself, and not in his friends. 



8 

In the spring of 1782, he was elected to the State Leg- 
islature, and in the autumn chosen to the Executive Council. 
In the next year took place his happy marriage, his removal 
to Richmond, thenceforth his home, and soon after, his re- 
tirement, as he supposed, from public life. But this was not 
to be, for his election again and again to the legislature, 
called on him for service which he was too patriotic to with- 
hold, even had he felt less keenly how full of trouble were 
the times. Marshall threw himself, heart and soul, into the 
great quesdons which bade fair to destroy by dissension what 
had been won by arms, and opposed to the best talent of his 
own State, he ranged himself with an unpopular minority. 
In measured words, years later, when he wrote the life of 
Washington, he defined the issue which then threatened to 
tear the country asunder. It was, he said, " divided into two 
great political parties, the one of which contemplated Amer- 
ica as a nation, and labored incessantly to invest the Federal 
head with powers competent to the preservation of the 
Union. The other attached itself to the State eovernment, 
viewed all the powers of Congress with jealousy, and as- 
sented reluctandy to measures which would enable the 
head to act in any respect independently of the mem- 
bers." Though the proposed Constitution might form, as 
its preamble declares, "a more perfect union" than had 
the Articles of Confederation ; though it might prevent 
anarchy and save the States from becoming secret 
or open enemies of each other ; though it might replace 
"a government depending upon thirteen distinct sove- 
reignties for the preservation of the public faith " by one 
whose power might regulate and control them all — the 



more numerous and powerful, and certainly the more 
clamorous party insisted that such evils, and evils worse 
than these, were as nothing compared to the surrender of 
State independence to Federal sovereignty. In public and 
private, in popular meetings, in legislatures and in conven- 
tions, on both sides passion was mingled with argument. 
Notably in Marshall's own State did many of her ablest sons, 
then and afterwards most dear to her, throw all that they had 
of courao-e, of high character and of patriotism, into the 
attempt to save the young country from its threatened yoke 
of despotism. Equally brave and able were those few who 
led the other party, and chief among them were Washington, 
Madison, Randolph and, later, Marshall. Young as he was, 
it was felt that such a man could not be left out of the State 
convention to which the Constitution was to be submitted, 
but he was warned by his best friends that unless he should 
pledge himself to oppose it his defeat was certain. He 
said plainly that, if elected, he should be "a determined 
advocate for its adoption," and his integrity and fearlessness 
overcame even die prejudices of his constituents. And in 
that memorable debate, which lasted five-and-twenty days, 
thouo-h with his usual modesty he contented himself with 
supporting the lead of Madison, three times he came to 
the front, and to the questions of the power of taxation, 
the power over the militia and the power of the judiciary, 
he brought the full force of his fast developing strength. 
The contest was severe and the vote close. The Constitution 
was ratified by a majority of only ten. But as to Marshall, 
it has been truly said that " in sustaining the Constitution, he 
unconsciously prepared for his own glory the imperishable con- 



lO 

nection which his name now has with its principles." And 
again his modesty would have it that he builded better than 
he knew, for in later times he would ascribe the course which 
he took to casual circumstances as much as to judgment ; he 
had early, he said, caught up the words, " united we stand, 
divided we fall ;" the feelings they inspired became a part of 
his being ; he carried them into the army where, associating 
with brave men from different States who were risking life 
and all else in a common cause, he was confirmed in the 
habit of considering America as his country, and Congress 
as his government. 

The convention was held in 1788. Again Marshall 
was sent to the legislature, where in power of logical 
debate he confessedly led the House, until in 1792 he left 
it finally. 

During the next five years he was at the height of his 
professional reputation. The Federal reports and those 
of his own State show that among a bar distinguished 
almost beyond all others, he was engaged in most of the 
important cases of the time. A few of these he has re- 
ported himself; they are modestly inserted at the end of 
the volume, and are referred to by the reporter as con- 
tributed "by a gendeman high in practice at the time and 
by whose permission they are now published." 

And here a word must be said as to the nature and ex- 
tent of his technical learning, for it is almost without parallel 
that one should admittedly have held the highest position at 
the bar, and then for thirty-five years should, as admittedly, 
have held the reputation of a great judge, when the entire 
time between the very commencement of his studies and 



II 



his relinquishment of practice was less than seventeen years. 
In that generation of lawyers and the generation which suc- 
ceeded them, it was not unusual that more than half that 
time passed before they had either a cause or a client. 
Marshall had emphatically what is called a legal mind; 
his marvellous instinct as to what the law ought to be 
doubtless saved him much labour which was necessary to 
those less intellectually great. With the principles of the 
science he was of course familiar ; with their sources he was 
scarcely less so. A century ago there was less law to be 
learned and men learned it more completely. Except as to 
such addition as has of late years come to us from the civil 
law, the foundation of it was the same as now — the same 
common law, the same decisions, the same statutes — and in 
that day, a century's separation from the mother country had 
wrought little change in the colonies except to adapt this 
law to their local needs with marvellous skill. Save as 
to this, the law of the one country was the law of the 
other, and the decisions at Westminster Hall before the 
Revolution were of as much authority here as there. There 
was not a single published volume of American reports. 
The enormous superstructure which has since been raised 
upon the same foundation, bewildering from its height, 
the number of its stories, the vast number of its chambers, 
the intricacies of its passages, has been a necessity from 
the growth of a country rapid beyond precedent in a cen- 
tury to which history knows no parallel. But the foundation 
of it was the same, and the men of the last century had not far 
to go beyond the foundation, and hence their technical learn- 
ing was, as to some at least, more complete, if not more pro- 



12 

found. There were a few who said that Marshall was 
never what is called a thoroughly technical lawyer. If 
by this is meant that he never mistook the grooves and 
ruts of the law for the law itself — that he looked at the law 
from above and not from below, and did not cite pre- 
cedent where citation was not necessary — the remark might 
have semblance of truth, but the same might be said of 
his noted abstinence from illustration and analogy, both of 
which he could, upon occasion, call in aid ; but no one can 
read those arguments at the bar or judgments on the 
bench in which he thought it needful to establish his 
propositions by technical precedents, without feeling that he 
possessed as well the knowledge of their existence and the 
reason of their existence, as the power to analyze them. But 
he never mistook the means for the end. 

Even in the height of his prosperous labour he never 
turned his back upon public duty. Not all the excesses 
of the French revolution could make the mass of Ameri- 
cans forget that France had been our ally in the war with 
England, and when in 1793 these nations took arms 
against each other, and our Proclamation of Neutrality was 
issued to the world, loud and deep were the curses that 
rang through the land. Hated as the proclamation was, 
Marshall had no doubt of its wisdom. Great was his grief 
to oppose himself to the judgment of Madison, but he was 
content to share the odium heaped upon Hamilton and 
Washington, and to be denounced as an aristocrat, a loy- 
alist and an enemy to republicanism. With rare courage, 
at a public meeting at Richmond he defended the wisdom 
and policy of the administration, and his argument as to 



13 

the constitutionality of the proclamation anticipated the judg- 
ment of the world. 

Two years later came a severer trial. Without his 
knowledge and against his will, Marshall had been again 
elected to the legislature. Our minister to Great Britain 
had concluded a commercial treaty with that power, and 
its ratification had been advised by the Senate and acted 
on by the President. The indignation of the people knew 
no bounds. In no State was it greater than in Virginia. The 
treaty was " Insulting to the dignity, injurious to the interests, 
dangerous to the security and repugnant to the Constitution 
of the United States"— so said the resolutions of a re- 
markable meeting at Richmond, and these words echoed 
through the country. Had not the Constitution given to 
Cono-ress the right to regulate commerce, and how dared the 
executive, without Congress, negotiate a treaty of com- 
merce ? Marshall's friends begged him, for his own sake, not 
to stem the popular torrent. He hoped at first that his own 
leo-islature might, as he wrote to Hamilton from Richmond, 
"ultimately consult the interest or honour of the nation. 
But now," he went on to say, " when all hope of this had 
vanished, it was deemed advisable to make the experiment, 
however hazardous it might be. A meeting was called which 
was more numerous than I have ever seen at this place ; and 
after a very ardent and zealous discussion, which consumed 
the day, a decided majority declared in favor of a resolution 
that the welfare and honour of the nation required us to give 
full effect to the treaty negotiated with Britain." Thus meas- 
uredly he told the story of one of his greatest triumphs, and 
afterwards, in his place in the House, he again met the con- 



stitutional objection in a speech which, men said at the time, 
was even stronger than the other. As he spoke, reason as- 
serted her sway over passion, party feeling gave way to con- 
viction, and for once tlie vote of the House was turned. Of 
this speech no recorded trace remains, but even in that time 
when news travelled slowly its fame spread abroad, and the 
subsequent conduct of every administration has to this day 
rested upon the construction then given to the Constitution 
by Marshall. 

Henceforth his reputation became national, and when a 
few months later he came to Philadelphia to argue the great 
case of the confiscation by Virginia of the British debts, a 
contemporary said of him, " Speaking, as he always does, to 
the judgment merely and for the simple purpose of con- 
vincing, he was justly pronounced one of the greatest men 
in the country." He were less than human not to be moved 
by this, but in writing to a friend, he modestly said, " A 
Virginian who supported with any sort of reputation the 
measures of the government, was such a vara avis that I was 
received with a dep^ree of kindness which I had not antici- 
pated." Soon after, Washington offered him the office of 
Attorney-General, and some months later, the mission to 
France. Both he declined. His determination to remain 
at the bar was, he thought, unalterable. 

And aofain he altered it. Neither France herself nor 
the " French patriots " here had forgotten or forgiven the 
treaty with Great Britain, and if the disgust at our persistent 
neutrality did not break into open war, it was because France 
knew, or thought she knew, that the entire American opposi- 
tion to the government was on her side. Just short of war 



she stopped. Privateers fitted out by orders of the French 
minister here preyed upon our commerce; the very ship which 
brought him to our shores began to capture our vessels 
before even his credentials had been presented ; later, by 
order of the Directory he suspended his diplomatic functions 
here and flung to our people turgid words of bitterness as 
he left ; the minister whom we had sent to France when 
Marshall had declined to go, was not only not received, but 
was ordered out of the country and threatened with the 
police. The crisis required the greatest wisdom and firmness 
which the country could command. Mr. Adams was then 
President ; he never lacked firmness, and his words to Con- 
gress at its special session were full of fearless dignity. 
Three envoys, said he, "persons of talents and integrity, 
long known and intrusted in the three great divisions of the 
Union," were to be sent to France, and Marshall was to be 
one of them. It went hard with him but the struggle was 
short, and as he left his home at Richmond crowds of citizens 
attended him for miles, and all party feeling was merged in 
respect and affection. The issue of his errand belongs to 
history. He has himself told us, in his Life of Washing- 
ton, how the envoys — his own name being character- 
istically withheld — were met by contumely and insult ; how 
the wiliest minister of the age suggested that a large sum of 
money must be paid to the Directory as a mere preliminary 
to negotiation ; how, if they refused, it would be known at 
home that they were corrupted by British influence, and how 
insults and menaces were borne with equal dignity. But he 
has not told us that his were the two letters to Talleyrand 
which have jusdy been regarded as among the ablest State 



i6 

papers in diplomacy. They were unanswerable, and nodiing 
remained but to oet Marshall and one of his colleacrues out 
of the country with as little delay as was consistent with 
additional marks of contempt. His return showed that re- 
publics are not always ungrateful, for there came out to 
him on his arrival a crowd even greater than that which had 
witnessed his departure, the Secretary of State and other 
officials among them, and at a celebration in his honour 
the phrase was coined which afterwards became national, 
" Millions for defence, but not one cent for tribute." 

Now surely he had earned the right to return to his 
loved professional labour. Nor only this — he had earned 
the right to such honour as the dignified labour of high 
judicial station could alone afford. The position of jus- 
tice of the Supreme Court of the United States had fallen 
vacant, and the President's choice rested on Marshall. " He 
has raised the American people in their own esteem," wrote 
Mr. Adams to the Secretary of State, "and if the influence of 
truth and justice, reason and argument, is not lost in Europe, 
he has raised the consideration of the United States in that 
quarter." But again there had come to him the call of duty. 
For Washington, who, in view of the expected war with 
France, had been appointed to command the army, had 
begged Marshall to come to him at Mount Vernon, and there 
in earnest talk for days dwelt upon the importance to the 
country that he should be returned to Congress. His reluc- 
tance was great not only to re-enter public life but to throw 
himself into a contest sure to be marked with an intensity 
of public excitement, degenerating into private calumny. If 
Washington himself had not escaped this, how should he ? 



17 

The canvass beg-an. In the midst of it came the offer of 
the repose and dignity of the Supreme Bench. But his word 
had been given, and he at once dechned. The contest 
was severe, his majority was small, and his election, though 
intensely grateful to Washington and those who thought 
with him, was met with many misgivings from some who 
thought him " too much disposed to govern the world 
according to rules of logic." 

His first act in Congress was to announce the death 
of Washington, and the words of the resolutions which 
he then presented, though written by another, meet our 
eyes on every hand, " First in war, first in peace, and 
first in the hearts of his countrymen." It was like Mar- 
shall that when, later, he came to write the life of Wash- 
ington, he should have said that the resolutions were pre- 
sented by "a member of the House," 

In that House — the last Congress that sat in Phila- 
delphia — he met the ablest men of the country. New mem- 
ber as he was, when the debate involved questions of law 
or the Constitution, he was confessedly the first man in it. 
His speech on the question of Nash's surrender is said 
to be the only one ever revised by him, and, as it stands, 
is a model of parliamentary argument. The President 
had advised the surrender of the prisoner to the English 
government to answer a charge of murder on the high 

o o o 

seas on board a British man-of-war. Popular outcry in- 
sisted that the prisoner was an American, unlawfully 
impressed, and that the death was caused in his attempt to 
regain his freedom, and though this was untrue, it was urged 
that as the case involved principles of law, the question of 



i8 

surrender was one for judicial and not executive decision. 
In most of its aspects the subject was confessedly new, 
but it was exhausted by Marshall. Not every case, he 
showed, which involves principles of law necessarily came 
before the courts ; the parties here were two nations, who 
could not litigate their claims ; the demand was not a case for 
judicial cognizance ; the treaty under which the surrender 
was made was a law enjoining the performance of a par- 
ticular object ; the department to perform it was the Ex- 
ecutive, who, under the Constitution, was to " take care that 
the laws be faithfully executed ; " and even if Congress had 
not yet prescribed the particular mode by which this was 
to be done, it was not the less the duty of the Executive 
to execute it by any means it then possessed. 

There was no answer to this, worthy the name ; the 
member selected to answer it sat silent ; the resolutions 
against the Executive were lost, and thus the power was 
lodged where it should belong, and an unwelcome and in- 
appropriate jurisdiction diverted from the Judiciary. 

The session was just over, when, in May, the Presi- 
dent, without consulting Marshall, appointed him Secre- 
tary of War. He wrote to decline. As part of the well- 
known disruption of the Cabinet, the office of Secretary 
of State became vacant, and Marshall was appointed to 
and accepted it. During his short tenure of office, an 
occasion arose for the display of his best powers, in his dis- 
patch to our minister to England concerning questions of great 
moment under our treaty, of contraband, blockade, impress- 
ment, and compensation to British subjects, a State paper not 
surpassed by any in the archives of that Department. 



19 

The autumn of 1800 witnessed the defeat of Mr. Adams 
for the Presidency and the resignation of Chief Justice 
Ellsworth, and, at Marshall's suggestion. Chief Justice 
Jay was invited to return to his former position, but 
declined. On being again consulted, Marshall urged the 
appointment of Mr. Justice Patterson, then on the Supreme 
Bench. Some said that the vacant office might possibly 
be filled by the President himself after the 3d of March, 
but Mr. Adams disclaimed the idea. " I have already," 
wrote he, "by the nomination to this office of a gentleman 
in full vioor of middle life, in the full habits of business, 
and whose reading- in the science of law is fresh in his 
head, put it wholly out of my power, and indeed it never 
was in my hopes and wishes," and on the 31st of January, 
1 80 1, he requested the Secretary of War "to execute the 
office of Secretary of State so far as to affix the seal of 
the United States to the enclosed commission to the pres- 
ent Secretary of State, John Marshall of Virginia, to be 
Chief Justice of the United States." He was then forty-six 
years old. 

It is difficult for the present generation to appreciate 
the contrast between the Supreme Court to which Mar- 
shall came and the Supreme Court as he left it ; the contrast 
is scarcely less between the Court as he left it and the 
Court of to-day. For the first time in the history of the 
world had a written constitution become an oro^anic law 
of government; for the first time was such an instrument 
to be submitted to judgment. With admirable force Mr. 
Gladstone has said, " As the British Constitution is the 
most subtile organism which has proceeded from pro- 



20 



gressive history, so the American Constitution is the most 
wonderful work ever struck off at a given time by the brain 
and purpose of man." On that subtile and unwritten Consti- 
tution of England, the professional training of every older 
lawyer in the country had been based, and they had learned 
from it that the power of Parliament was above and beyond 
the judgments of any court in the realm. Though this 
American Constitution declared in so many words that 
the judicial power should extend to " all cases arising 
under the Constitution and the laws of the United States," 
yet it was difficult for men so trained to conceive how 
any law which the Legislative department might pass and 
the Executive approve could be set aside by the mere 
judgment of a court. There was no precedent for it in 
ancient or modern history. Hence when first this question 
was suggested in a Federal court, it was received with grave 
misgiving ; the general principles of the Constitution were 
not, it was said, to be regarded as rules to fetter and 
control, but as matter merely declaratory and directory; 
and even if legislative acts directly contrary to it should be 
void, whose was the power to declare them so ? 

Equally without precedent was every other question. 
Those who, in their places as legislators, had fought the 
battle of State sovereignty, were ready to urge in the 
courts of justice that the Federal Government could claim 
no powers that had not been delegated to it in ipsissimis 
verbis. If delegated at all, they were to be contracted by 
construction within the narrowest limits. Whether the 
right of Congress to pass all laws " necessary and proper " 
for the Federal Government was not restricted to such as 



21 



were indispensable to that end; whether the right of tax- 
ation could be exercised by a State against creations of 
the Federal Government ; whether a Federal court could 
revise the judgment of a State court in a case arising 
under the ConsUtution and laws of the United States; 
whether the officers of the Federal Government could be 
protected against State interference ; how far extended the 
power of Congress to regulate commerce within the 
States; how far to regulate foreign commerce as against 
State enactment; how far extended the prohibition to 
the States against emitting bills of credit — these and like 
questions were absolutely without precedent. 

It is not too much to say that but for Marshall such 
questions could hardly have been solved as they were. 
There have been great judges before and since, but none 
had ever such opportunity, and none ever seized and im- 
proved it as he did. For as was said by our late President, 
" He found the ConsUtution paper, and he made it power ; 
he found it a skeleton, and clothed it with flesh and blood." 
Not in a few feeble words at such a time as this can be told 
how, with easy power he grasped the momentous ques- 
tions as they arose ; how his great statemanship lifted them 
to a high plane; how his own clear vision pierced clouds 
which caused others to see as through a glass darkly, and 
how all that his wisdom could conceive and his reason 
could prove was backed by a judicial courage unequalled 

in history. 

It may be doubted whether, great as is his reputation, full 
justice has yet been done him. In his interpretation of 
the law, the premises seem so undeniable, the reasoning 



22 



SO logical, the conclusions so irresistible, that men are wont 
to wonder that there had ever been any question at all. 

A single instance — the first which arose — may tell its own 
story. Congress had given to his own court a jurisdiction 
not within the range of its powers under the Constitution. 
If it could lawfully do this, the case before the court was 
plain. Whether it could, said the court, in Marshall's 
words, "Whether an act repugnant to the Constitution can 
become the law of the land, is a question deeply inter- 
esting to the United States, but, happily, not of an intricacy 
proportioned to its interest ; " and in these few words was 
the demonstration made : " It is a proposition too plain to 
be contested, that the Constitution controls any legislative 
act repugnant to it, or that the legislature can alter the 
Constitution by an ordinary act. Between these alternatives 
there is no middle ground. The Constitution is either a 
superior paramount law, unchangeable by ordinary means, 
or it is on a level with ordinary legislative acts, and, like 
other acts, is alterable when the legislature shall please to 
alter it. If the former part of the alternative be true, then 
a legislative act contrary to the Constitution is not law ; if 
the latter part be true, then written constitutions are absurd 
attempts on the part of the people to limit a power in its 
own nature illimitable." 

Here was established one of the great foundation prin- 
ciples of the government, and then in a few sentences, and 
for the first time, was clearly and tersely stated the theory of 
the Constitution as to the separate powers of the Legislature 
and the Judiciary. If, he said, its theory was that an act of 
the Legislature repugnant to it was void, such an act could 



23 

not bind the courts and oblige them to give it effect. This 
would be to overthrow in fact what was established in theory. 
It was of the very essence of judicial duty to expound and 
interpret the law ; to determine which of two conflicting laws 
should prevail. When a law came in conflict with the Con- 
stitution, the judicial department must decide between them. 
Otherwise, the courts must close their eyes on the Constitu- 
tion, which they were sworn to support, and see only the 
law. 

The exposition thus begun was continued for more than 
thirty years, and in a series of judgments, contained in many 
volumes, is to be found the basis of what is to-day the 
constitutional law of this country. Were it possible, it 
would be inappropriate to follow here, with whatever profit, 
the processes by which this great work was done. The least 
approach to technical analysis would demand a statement of 
the successive questions as they arose, each fraught with 
the history of the time and each suggesting illustrations and 
analogies which subsequent time has developed. It may 
have been that could Marshall have foreseen the extent to 
which, in some instances, his conclusions could be car- 
ried, in the uncertain future and under such wholly changed 
circumstances as no man could then conjecture, he would 
possibly have qualified or limited their application ; but the 
marvel is, that of all he wrought in the field of constitutional 
labour there is so litde that admits of even question. 

But besides this, there was much more. It has been 
truly said of him that he would have been a great judge at 
any time and in any country. Great in the sense in which 
Nottingham and Hardwicke as to equity, were great; in which 



24 

Mansfield as to commercial law and Stowell as to admiralty, 
were great — great in that, with little precedent to guide them, 
they produced a system with which the wisdom of succeeding 
generations has lound little fault and has little changed. 
In Marshall's court there was little precedent by which 
to determine the rights of the Indian tribes over the land 
which had once been theirs, or their rights as nations 
against the States in which they dwelt ; there was lit- 
tle precedent when, beyond the seas, the heat of war had 
produced the British Orders in Council and the retaliatory 
Berlin and Milan Decrees ; when the conflicting rights of 
neutrals and belligerents, of captors and claimants, of those 
trading under the flag of peace and those privateering under 
letters of marque and reprisal ; when the effect of the judg- 
ments of foreign tribunals ; when the jurisdiction of the sov- 
ereign -upon the high seas — when these and similar questions 
arose, there was little precedent for their solution, and they 
had to be considered upon broad and general principles of 
jurisprudence, and the result has been a code for future time. 

Passing from this, a word must be said as to his judicial 
conduct when sitting apart from his brethren in his Circuit 
Courts. Especially when presiding over trials by jury his best 
personal characteristics were shown ; the dignity, maintained 
without effort, which forbade the possibility of unseemly dif- 
ference, the quick comprehension, the unfailing patience, the 
prompt ruling, the serene impartiality and, when required, 
the most absolute courage and independence made up as nearly 
perfect a judge at Nisi Prius as the world has ever known. 

One instance only can be noticed here. The story of 
Aaron Burr, with all its reality and all its romance, must 



25 

always, spite of much that is repugnant, fascinate both 
young- and old. When in a phase of his varied life, he 
who had been noted, if not famous, as a soldier, as a 
lawyer, as an orator, who had won the reason of men and 
charmed the hearts of women, who had held the high office 
of Vice-President of the United States, and whose hands 
were red with the blood of Hamilton — when he found himself 
on trial for his life upon the charge of high treason, before a 
judge who was Hamilton's dear friend and a jury chosen with 
difficulty from an excited people, what wonder that, like 
Cain, he felt himself singled out from his fellows, and coming 
between his counsel and the court, exclaimed : "Would to 
God that I did stand on the same ground with any other man ! " 
And yet the impartiality which marked the conduct of those 
trials was never excelled in history. By the law of our 
mother country to have only compassed and imagined the 
government's subversion was treason ; but, according to our 
Constitution, " treason against the United States shall consist 
only in levying war against them, or in adhering to their ene- 
mies, giving them aid and comfort," and can it be, said Mar- 
shall, that the landing of a few men, however desperate and 
however intent to overthrow the government of a State, was 
a levying of war? It might be a conspiracy, but it was not 
treason within the Constitution — and Burr's accomplices were 
discharged of their high crime. And upon his own memor- 
able trial — that strange scene in which these men, the pris- 
oner and the judge, each so striking in appearance, were 
confronted, and as people said, " two such pairs of eyes 
had never looked into one another before " — upon that 
trial the scales of justice were held with absolutely even hand. 



26 

No greater display of judicial skill and judicial rectitude was 
ever witnessed. No more effective dignity ever added weight 
to judicial language. Outside the court and through the 
country it was cried that "the people of America demanded 
a conviction," and within it all the pressure which counsel 
dared to borrow was exerted to this end. It could hardly be 
passed by. "That this court dares not usurp power, is most 
true," began the last lines of Marshall's charge to the jury. 
"That this court dares not shrink from its duty, is not 
less true. No man is desirous of becoming the pecu- 
liar subject of calumny. No man, might he let the bitter 
cup pass from him without self-reproach, would drain it to 
the bottom. But if he have no choice in the case, if there 
be no alternative presented to him but a dereliction of duty 
or the opprobrium of those who are denominated the world, 
he merits the contempt as well as the indignation of his 
country, who can hesitate which to embrace." That coun- 
sel should, he said, be impatient at any deliberation of the 
court, and suspect or fear the operation of motives to which 
alone they could ascribe that deliberation, was perhaps a 
frailty incident to human nature, " but if any conduct could 
warrant a sentiment that it would deviate to the one side 
or the other from the line prescribed by duty and by law, 
that conduct would be viewed by the judges themselves 
with an eye of extreme severity, and would long be recol- 
lected with deep and serious regrets." 

The result was acquittal, and as was said by the angry 
counsel for the Government, " Marshall has stepped in 
between Burr and death ! " Though the disappointment 
was extreme; thoug-h starting from the level of excited 



27 

popular feeling, it made its way upward till it reached the 
dignity of grave dissatisfaction expressed in a President's 
message to Congress ; though the trial led to legislative 
alteration of the law, the judge was unmoved by criticism, no 
matter from what quarter, and was content to await the 
judgment of posterity that never, in all the dark history of 
State trials, was the law, as then it stood and bound both 
parties, ever interpreted with more impartiality to the accuser 
and the accused. 

Once only did Marshall enter the field of author- 
ship. Washington had bequeathed all his papers, public and 
private, to his favourite nephew, who was one of Marshall's 
associates on the bench. It was agreed between them that 
Judge Washington should contribute the material and that 
Marshall should prepare the biography. The bulk of papers 
was enormous, and Marshall had just taken his seat on the 
bench and was deep in judicial work. The task was done 
under severe pressure, and ill health more than once inter- 
rupted it ; but it was a labour of love, and his whole heart 
went out toward the subject. His political opponents 
feared that his strong convictions, which he never concealed, 
would now be turned to the account of his party, but the 
writer was as impartial as the judge. He recalled and per- 
petuated the intrigues and cabals, the disappointments and the 
griefs which, equally with the successes, were part of Wash- 
ington's life ; but full justice was done to those men 
whom both Washington and his biographer distrusted 
and opposed. It is agreed that for minuteness^ impartiality 
and accuracy, the history is exceeded by none. There 
were those who said the work was colourless, and 



28 

others were severe by reason of the absolute truth which 
became their most absolute punishment, but no one's judg- 
ment was as severe as Marshall's own, save only as to its 
accuracy. Once only was this seriously questioned, and by 
one of the most distinguished of his opponents, and the 
result was complete vindication. 

It is matter of history that upon Washington's death 
the House had resolved that a marble monument should 
be erected in the city of Washington, " so designed as 
to commemorate the great events of his military and 
political life." But, as Marshall tells us, " that those great 
events should be commemorated could not be pleasing to 
those who had condemned, and continued to condemn, the 
whole course of his administration." The resolution was post- 
poned in the Senate and never passed, and almost the only 
tinge of bitterness in his pages is that those who possessed 
the ascendency over the public sentiment employed their 
influence " to impress the idea that the only proper monu- 
ment to a meritorious citizen was that which the people 
would erect in their affections." This he wrote in 1807 and 
repeated in 1832, and in the next year the people resolved 
that this should no longer be. The National Monument 
Association was then formed, and Marshall was its first 
president. Under Its auspices, and with the aid, long after, 
of large appropriations by Congress, the gigantic column 
within our sight is slowly and gradually being reared. 

Near the close of his life, when he was seventy-four 
years old, Marshall was chosen a member of the convention 
which met, in 1829, to revise the constitution of his native 
State. It was a remarkable body. The best men of the 



29 

State were there. Some of them were amone the best men 
in the country, for then, as always, Virginia had been proud 
to rear and send forth men whose names were foremost 
in their country's history. Prominent among them were 
Madison, Monroe and MarshalL Even then, party spirit 
ran high. Two questions In particular, the basis of 
representation and the tenure of judicial office, distracted 
the convention, as they had distracted the people. On both 
these questions Marshall spoke with his accustomed dig- 
nity and not less than his accustomed force, and his words 
were listened to with reverent respect. Upon the subject of 
judicial tenure he spoke from his very heart, " with the fer- 
vour and almost the authority of an apostle." He knew, 
better than any, how a judge, standing between the powerful 
and the powerless, was bound to deal justice to both, and that 
to this end his own position should be beyond the reach of 
anything mortal. " The judicial department," said he, " comes 
home in its effects to every man's fireside ; it passes on his 
property, his reputation, his life, his all. Is it not to the last 
degree important that he should be rendered perfectly and 
completely independent, with nothing to control him but God 
and his conscience ?" And his next words were fraught with 
the wisdom of past ages, let us hope not with prophetic fore- 
boding : '' I have always thought, from my earliest youth till 
now, that the greatest scourge an angry Heaven ever inflicted 
upon an ungrateful and a sinning people, was an ignorant, a 
corrupt or a dependent judiciary." 

Something has here been said of Marshall's inner life 
in its earlier years, and no man's life was ever more dear 
to those around him than was his from its beginning to its 



30 

close. His singleness and simplicity of character, his sim- 
plicity of living, his love for the young and respect for the 
old, his deference to women, his courteous bearing, his tender 
charity, his reluctance to conceive offence and his readiness 
to forgive it, have become traditions from which in our 
memories of him we interweave all that we most look up 
to, with all that we take most nearly to our hearts. 

As the eveninof of life cast its lonor shadows before 
him, the labour and sorrow that come with four-score years 
were not allowed to pass him by. Great physical suffering 
came to him ; the hours not absorbed in work brought to him 
memories of her whose life had been one with his for fifty 
years. The " great simple heart, too brave to be ashamed of 
tears," was too brave not to confess that rarely did he go 
througrh a nitrht without sheddinor them for her. No out- 
ward trace of this betrayed itself, but lest some part of it 
should, all unconsciously to himself, impair his mental force, 
he begged those nearest to him to tell him in plain 
words when any signs of failing should appear. But the 
steady light within burned brightly to the last, however waning 
might be his mortal strength. He met his end, not at his 
home, but surrounded by those most dear to him. As it 
drew near, he wrote the simple inscription to be placed upon 
his grave. His parentage, his marriage, with his birth and 
death, were all he wished it to contain. And as the long sum- 
mer day faded, the life of this great and good man went out, 
and in the words of his Church's liturgy, he was "gathered 
to his fathers, having the testimony of a good conscience, in 
the communion of the catholic Church, in the confidence of 
a certain faith, in the comfort of a reasonable, religious and 



31 

holy hope, in favour with God and in perfect charity with the 
world." 

And for what in his life he did for us, let there be lasting- 
memory. He and the men of his time have passed away ; 
other generations have succeeded them ; other phases of our 
country's growth have come and gone ; other trials, greater a 
hundred fold than he or they could possibly have imagined, 
have jeoparded the nation's life ; but still that which they 
wrought remains to us, secured by the same means, enforced 
by the same authority, dearer far for all that is past, and 
holding together a great, a united and a happy people. 
And all largely because he whose figure is now before 
us has, above and beyond all others, taught the people 
of the United States, in words of absolute authority, what 
was the Constitution which they ordained, " in order to form 
a more perfect union, establish justice, insure domestic tran- 
quillity, provide for the common defence, promote the general 
welfare, and secure the blessings of liberty to themselves and 
their posterity." 

Wherefore with all gratitude, with fitting ceremony and 
circumstance ; in the presence of the highest in the land ; in 
the presence of those who make, of those who execute, and 
of those who interpret the laws ; in the presence of those de- 
scendants in whose veins flows Marshall's blood, have the Bar 
and the Congress of the United States here set up this sem- 
blance of his living form, in perpetual memory of the honour, 
the reverence and the love which the people of his country 
bear to the great Chief Justice, 



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